Legal Issues in Occupational Ergonomics - Fundamentals and Assessment Tools for Occupational Ergonomics - page 42

3.4.5 Fees
The fees to be charged for professional services should be reasonable under the circumstances. The fees
may vary widely for consultation, analysis, evaluation, travel, deposition time, trial appearances, prep-
aration of demonstrative evidence, the assistance of associates or other professionals, and administrative
support services. There should be a printed and up-to-date fee schedule that is applicable to all kinds of
work. It should not differ for various projects or parties. It is important that the expectations of both the
retaining party and the expert or consultant be clearly known. The expectations include what is to be
achieved within the agreed time and cost estimates. There should be approval of any extraordinary
expenditures such as those for special research, laboratory testing, and special exhibits. Equality of
performance on different projects or cases suggest the need for budgeting sufficient calendar time and
avoiding schedule conflicts, since a crowded or disorganized schedule could disrupt the schedules of
other participants. The knowledge of the project or case schedule is important to avoid last minute
efforts and shortcomings in preparation; for example, “I did not know of that or thought of it” in the
middle of court testimony. In essence, the timely and cost-effective performance should meet or
exceed the comparable accomplishments of peers within the specialty.
The fees should not be excessive. High fees do not suggest that there will be a high level of performance.
Experts are evaluated on past performance and reputation. The past is prologue. Some of the very best
and well-known consultants and experts charge rather moderate fees, divide the costs of travel among
several projects, and share test costs that can be applied to multiple projects. It is the total final cost
that is important, not the hourly rate. Excessive fees may suggest “purchased testimony” and possible
ethical problems.
It is generally assumed that the expert is already familiar and prepared, in a general sense, with the
content of the specialty that is applicable to the project. But, time should be allocated to learn recent
developments in the field, to refine what may be said about possible conflicts on key issues, and to
prepare a list of supporting publications. In other words, an informed estimate of the overall cost
should be made. This is to avoid insufficient preparation that could result in court testimony that is mis-
taken or inadequate, since a trial error can be costly and irremediable. Poor advice given during an urgent
effort to correct a liability problem, within a company, could have serious consequences in terms of mon-
etary costs and human lives. In essence, there may be a fleeting window of opportunity, in a competitive
enterprise, for informed relevant information, rather than “old hat” opinions. Some specialists do choose
the path of least effort with conceptions of consultant-only project aspirations, but most projects related
to litigation are an intellectual challenge requiring “best efforts.” Never underestimate what is known
about your specialty by those in other disciplines, so provide something exceptional for the purchasers
of your services.
Retainers also should be reasonable under the circumstances. Before charging any fees, there should be
full disclosure of any possible conflicts-of-interest and of any potential problems that could render the
professional services impaired, useless, void, or excludable. If problems arise during the job performance,
they should be disclosed early enough to permit repair or replacement of the expert. Do not wait until
after there is a formal disclosure of experts in litigation, since after naming the expert witnesses they may
not be replaceable and a big hole could be left in the trial presentation. It is advantageous to have every-
thing that relates to fees and your professional activities in writing, in anticipation of fee disputes, but
such writings should be reviewed by legal counsel for meaning, effect, legality, and possible interpretation
by other parties. Care is required where money motivates action by others.
3.4.6 Personal Opinion Testimony
Some state court judges distinguish between science-based testimony and personal opinion testimony. It
is the scientific type testimony, with its deductive reasoning (from general to specifics) that has resulted
in the erection of judicial limitations on that type of opinion testimony (Frye, 1923; Daubert, 1993). The
attempt is to limit where there is new, novel, experimental, or exotic testimony that might be misleading